England and Wales High Court (Admiralty Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMIRALTY COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		18/01/2007

Mr Justice David Steel :

1. The Claimants are the owners of the tug SEA TRACTOR, her Master, Officers and Crew. The Defendants are the owners of the vessel TRAMP. The Claimants seek to recover salvage remuneration in respect of services rendered on 21 March 2006. The Defendants contend that the services were merely towage services to be remunerated in accordance with the Claimants' usual tariff in the sum of £625.
2. Salvage claims in this court are rare. This is a tribute to the efficiency of the Lloyds Salvage Arbitration system. However, where as here, there is a dispute as to whether the services constituted salvage services, it is necessary for that issue to be determined either by this court or, more usually, by an ad hoc submission to arbitration.
3. When these proceedings initially came before me I expressed concern that the legal costs were at risk of being out of all proportion to the claim, even if it proved appropriate to determine it on a salvage basis. In order to limit those costs, I ordered that the trial be conducted on the basis that it should be accomplished within a morning – the parties being limited to ½ an hour's cross-examination of the respective masters and 45 minutes by way of submissions. I believe the parties viewed this as a fair balance between the need for thorough consideration of the issues and the need for limitation of expense. In any event the hearing has been duly conducted within the time limits imposed.
4. SEA TRACTOR is a small motor workboat/tug of 340 hp. She was built in 1980. She is some 15 metres in length with a maximum draft of about 1.5 metres. She is equipped with twin propellers. She was of ideal size and power for towage operations on the River Swale where she is based. Her replacement cost was in the region of £150,000.
5. TRAMP is a small coaster of 1,181 tons gross with a single hold. She was built in 1978. She is some 68 metres in length and 11.6 metres in beam. At the relevant time she was in ballast and drawing about 1.8 metres forward and 2.7 metres aft. She is equipped with diesel engines of 1800 hp driving a single propeller. Her value was not agreed. It is not necessary to say more than that she was probably worth in the region of £400,000.
6. The services took place in the River Swale. This river runs between the Isle of Sheppey and mainland Kent, the Isle itself lying between the estuaries of the River Thames and the River Medway. The scene of the services was in the vicinity of Washer Wharf, Queenborough.
7. The Washer Warf berth is located on the easterly side of Long Point, which is a spit of land running on an axis of approximately 320°/140°. Long Point, and the mud bank on its easterly side, forms the western side of Loden Hope and it extends about 400 metres beyond the northern end of Washer Wharf, where after there is a sharp hairpin bend to port into Long Reach.
8. At the relevant time SEA TRACTOR was moored in her usual position off Queenborough some 500 metres from Washer Wharf, around the reverse bend from Loden Hope into Queenborough Harbour.
9. Washer Wharf is a small fairly derelict berth. Although it has been used for some years for the loading and unloading of steel products, the piles making up the berth and the outside steel face are unfendered.
10. The evidence put before the court included statements from the respective masters, together with a statement from the ship's agent served on behalf of the Defendants. Both masters gave oral evidence at the trial. They were conspicuously experienced and, although there were inevitable differences of recollection, they unquestionably sought to assist the court to the best of their ability.
11. The chronology of the events that emerged was broadly as follows. The master of TRAMP took over command on 10 February 2006. Almost his first voyage with the vessel was to Washer Wharf where the vessel berthed on 20 February. It is of some note that, although he understood that a tug was not usually used for berthing (or un-berthing), the pilot recommended the engagement of a tug given the strong north easterly wind. This recommendation was duly accepted on that occasion.
12. Two voyages later TRAMP docked again at Washer Wharf on 20 March. She did so without a tug. The manoeuvre involved the starboard anchor being dropped to bring the vessel round. Thereafter the starboard anchor was weighed and, on approaching the wharf, the port anchor was let go to control the berthing alongside. The vessel duly berthed heading southeast.
13. By 1600 on 21 March TRAMP had completed discharge of her cargo and was prepared for departure in ballast to Amsterdam. The tide was ebbing, low water being predicted at Sheerness for 2154. The wind as described in the contemporary VHF transcript was north easterly about 20 knots, similar to the wind conditions on 20 February.
14. The pilot boarded the vessel at about 1800. He discussed the departure plan with the master of TRAMP. The pilot recommended the use of a tug. This suggestion was rejected by the master (in consultation with the ship's agent) and it is clear from the VHF transcript that pilot acceded to this with strong reservations: -

TRAMP. Yes we are going to try coming off Washer Wharf. Have advised to have a tug but we are going to try to come off Washer Wharf.

MEDWAY. Mike Aye Aye, you are going to try to come off Washer Wharf but did you say you have advised a tug was that correct?

TRAMP. That is correct, that is affirmative.

MEDWAY. All noted Michael.

TRAMP. Ok, thank you.

15. After about 30 minutes the port anchor was retrieved. The usual mode of departure would have been to come off the berth by using the back spring so as to pivot the bow out. However in the prevailing weather conditions it was decided to come off by swinging the stern off by using the fore spring. Unfortunately, as the vessel came astern into the stream, the vessel was caught by the wind bringing the bow right round to head upstream.
16. TRAMP then embarked on numerous engines and anchor movements up and down Loden Hope, trying to turn the bow to seaward. The ship's agent intervened by telephone at some stage to enquire whether tug assistance was needed but initially was told it was not. In due course, however, at 1940 it was decided by those on TRAMP to seek tug assistance.
17. The contemporary VHF record is revealing:

TRAMP Yes, good evening Michael we got her off the berth but we can't get her round so we're going to wait for a tug.

MEDWAY. Yes, have to go through Phil Harwood have been talking to him.

TRAMP. Yes he has been watching the orchestral manoeuvres and it is just a case of waiting for a tug. We have tried several times to get her round but no joy.

MEDWAY. Yes fine ok thank you, I will talk to Phil to get you a tug along.

TRAMP. Ok thank you.

18. SEA TRACTOR was duly contacted and got underway promptly arriving at the scene about 15 minutes later. By the time she arrived, TRAMP was about half way along the reach from Washer Wharf to the end of Long Point. In due course, SEA TRACTOR took a ship's line at about 1954 from TRAMP'S starboard bow. After towing for about 3 or 4 minutes, TRAMP'S bow was brought round to seaward and SEA TRACTOR let go at about 2000.
19. I turn now to the question of whether TRAMP was in sufficient danger to found a claim for salvage. Whilst the views of the master are of some persuasive influence, the test is essentially an objective one. The vessel must have encountered a situation which would expose it to damage if the service was not rendered, such that no reasonable person in charge of the venture would refuse a salvor's help if it was offered to him upon the condition of paying a salvage award: see Kennedy & Rose: Law of Salvage 6^th Ed para. 333.
20. In this context I must first deal with an issue of fact. The Claimants contended that TRAMP, pinned by the wind, was lying so close to Long Point at the commencement of the services that her port bilge keel must have been on the ground. Whilst I have no doubt that TRAMP had been set over to the portside of the channel , I am not persuaded that she was on the ground.
21. Having consulted my assessor, I accept the submission made by Mr Russell QC on the Defendants' behalf that this position is not reconcilable with various factors: -

a) The pilot would have been very conscious of his proximity to the bank. Given his readiness to criticise the decision to attempt departure without a tug, it seems wholly improbable that he would not make the point that he was already aground on the VHF record.

b) By the same token the manoeuvres undertaken by the pilot could only be categorised as bizarre if the vessel was up against the bank: -

i) Before the arrival of the tug she had been working her engines astern which would merely have forced the stern of the vessel further up the bank.

ii) After the arrival of the tug, she worked her engines ahead as her head was pulled to starboard pivoting the stern in way of the bank. This would have resulted in the risk of damage to both rudder and propeller if the stern had been in close proximity to the bank.

22. This leads on to the second issue. It was the Defendants' case that, although unable to turn, there were a number of options open to TRAMP pending slack water or a drop in the wind force.
23. The short answer, even assuming one or more of these options to be available, is that the vessel was significantly impeded in her manoeuvring ability and to all intents and purposes immobilised. The very fact that tug assistance was called in is only consistent with the financial and physical risks associated with the situation.
24. That said, the Defendant relied on four possible options open to TRAMP in the absence of assistance: -

a) TRAMP could continue to work up and down Loden Hope off Long Point.

Despite the fact that TRAMP was not aground, it is clear that she was being brought progressively over to the western edge of the channel. She was in ballast. In the prevailing wind it was probable that she would have been unable to avoid coming into contact with the bank in due course.

b) The vessel could anchor in mid stream

Even if it were appropriate to anchor in the river from the perspective of other traffic, the proximity of the bank would have rendered swinging to an anchor hazardous particularly as the tide fell.

c) The vessel could re-berth at Washer Wharf

This would appear to be a difficult manoeuvre. TRAMP was well up the length of Long Point. Dropping back on an anchor onto an unfendered wharf would be a risky enterprise.

d) The vessel could put herself aground on the northern bank

Deliberate grounding would be a matter of last resort. Although the vessel was designed to take the ground at a safe berth, the area was studded with rubbish, stones and other materials. Any taking of the bottom would have been hazardous.

25. In short, I have come to the conclusion that the vessel was in an unhappy predicament and was clearly in need of tug services on salvage terms.
26. In many respects the services were as short and straight forward as could be involved in a salvage claim. The tug came out at about 15 minutes from her mooring some 1/3 of a mile to the east. The tow was accomplished in a few minutes.
27. However, making fast involved some skilful manoeuvring, as exemplified by VHF exchanges between tug and tow:

SEA TRACTOR	.Lovely if you can give us a ship's rope please that would be handy.
TRAMP	Yes, we will bring it off the starboard bow.
SEA TRACTOR	Lovely jubbly.
…….
SEA TRACTOR	Pilot can you hang on a minute, and I will try and catch up with you?
TRAMP	Yea, I'm just worried about going astern. I'm just coming astern all the time.
SEA TRACTOR	I'm going to have to come around and come back to you then.
TRAMP	Sorry.
SEA TRACTOR	I see you're going astern, you have run away from me I am going to have to come back to you.
TRAMP	Can you give her a kick ahead, a touch ahead?
SEA TRACTOR	If you just stay where you are, let me get the rope.
….TRAMP	. Ok.
…..
TRAMP	We're just starting the swing now.
SEA TRACTOR	Understood.
SEA TRACTOR	Easy pilot, you are overtaking me."

28. That all said, there was no material risk of damage to the tug given the competent command of her master. It is also clear that there was alternative assistance in the form of the tugs of ADSTEAM, but it would also have to be paid for on salvage terms.
29. In brief this was a relative straightforward service to a vessel in modest danger from which she could not extract herself safely. The services were rendered by a small tug which had responded promptly but which has no claim to professional status.
30. I have come to the conclusion that a fair but encouraging award would be in the sum of £12,500.